Although the eighteenth-century domestic novel is primarily interested in establishing the proto-modern marriage, it is also concerned with marital breakdown and dissolution. Imagining the experience of marital discord within the rigid contours of divorce and custody law becomes another way for novelists to represent, appraise, and reinvent the private sphere and its often tenuous relationship to public institutions. Here, I examine the ways in which early- and late- century literary narratives of domestic conflict contend with the presumptions and fictions on which the period’s dissolution law was founded. I argue that, unlike contemporaneous legal discourse on parliamentary divorce and private separation, these texts do not equivocate on the abstract notion that marriage is a universal good, nor do they register ambivalence toward the ideas of paternal sovereignty or lawful bastardy; rather, the novels challenge these conceptions and, in so doing, confront both the doctrine of marital permanence and its legal exceptions. Indeed, separation and divorce are drawn as complex processes, entangled with social, economic,
and educational forces, and their severe inflexibility, especially for the female sex and their children, is revealed to be in need of reform. Yet, the novels do not envision large-scale systemic change, nor do they imagine a course of reconciliation or of separation that is both realistic and fully satisfying. This failure of literary innovation, while perhaps an immediate frustration for its readership, is nonetheless a self-authorizing move, pointing us back to the novels on marriage formation and unification for guidance on how to circumvent the sort of conflict that threatens to destabilize marriage and the family.
In the first half of this discussion, I want to return to the mid-century work of Daniel Defoe and Eliza Haywood. Defoe’s The Fortunes and Misfortunes of the Famous Moll Flanders
(1722) and Haywood’s The History of Miss Betsy Thoughtless (1751), each presented as a
didactic biographical history, narrate female subjectivity through experiences of sexual infidelity, marital rupture and, for Moll Flanders, maternal hardship. What emerges from these texts is a picture of dissolution law as potentially adverse to individual development and stability, and consequently, to communal welfare. In Moll Flanders, the eponymous heroine must circumvent the law’s conservative domestic doctrine in order both to protect the self against moral and material collapse and to construct a happy domestic space. In Betsy Thoughtless, by contrast, the eponymous heroine must learn to operate within the law’s confines in order not only to secure her moral position, but also to rewrite the feminine ideal in more liberal terms. To be clear, these early novelistic representations of marital discord do not deny the personal and political
significance of marriage and the family nor do they reject the developing body of dissolution law in its entirety. Rather, the novels serve to remind us that domestic conflict does not happen in a legal vacuum—that there is a multitude of factors influencing the troubled marriage-family
dynamic, and those factors often fly in the face of the doctrine of marital permanence and its foundational or contingent fictions.
Modeled after the period’s popular criminal autobiography genre, Moll Flanders
chronicles the eponymous heroine’s seventy years of lawless adventure and moral repentance. This private history of economic and sexual misconduct is intended, so the Preface avers, to “recommend Vertue, and generous Principles, and to discourage and expose all sorts of Vice and Corruption of Manners” (3, 3-4). The novel arguably succeeds in this enterprise as far as its depiction of Moll’s property crimes, for which she is eventually imprisoned and transported; however, the text’s didactic representation of marital and parental transgressions, specifically bigamy, adultery, and child abandonment, is more complicated. The novel’s moral register recognizes the public and private problem of domestic disorder, particularly among the lower classes, but it resists the idea that formal marriage and a strict dissolution policy are
incontrovertible defenses against such disorder or antidotes thereto. In fact, Defoe’s pragmatist narrative, with its emphasis on the realities of economic and social disadvantage, as well as its interest in female self-government, most often posits marital separation, infidelity, and familial neglect as normative and necessitous conduct. England’s exacting divorce law thus becomes a cipher for a range of domestic fictions.
The chief domestic crime in Moll Flanders is bigamy, or the act of contracting marriage while lawfully espoused to another.161 Moll commits the offense no less than three times in the
161 Melissa Ganz provides a useful overview of early modern bigamy law in her essay on marriage and divorce in
Moll Flanders. She explains that the Bigamy Act of 1603 exempted from criminal punishment those persons who
remarried after seven years of uninterrupted spousal desertion and silence; similarly, the canon laws of 1604 “mitigated the punishment” in such cases (“Moll Flanders and English Marriage Law,” 174). Nevertheless, the Church courts continued to deny the legal validity of a deserted spouse’s subsequent marriage (174-75). Therefore, Moll’s bigamous conduct, which proceeds throughout her history, is technically criminal only through her third marriage, which occurs one year after her second husband’s desertion, but all of her subsequent unions are legally invalid, as evidence never surfaces of that husband’s demise.
novel’s course, as the second of her five marriages remains a lawful bond through to her
history’s end. Indeed, this second union, while disrupted by financial disaster and experienced as a permanent estrangement—Moll’s tradesman husband, the Linen-Draper, absconds to France after being imprisoned for debt—is never formally dissolved. As Moll reflects, “I was a widow bewitch’d; I had a Husband and no Husband, and I could not pretend to Marry again” (64). Yet, “pretend” she does. Feeling the pressures of economic instability, Moll enters into subsequent marriage contracts without reservation or remorse, at one point musing “[h]e [her estranged husband] was effectually dead in Law to me, and had told me I should look on him as such, so I had not the least uneasiness on that score [i.e., subsequent marriage]” (94). Even for the
reformed autobiographer, this brief second union has no binding authority, and the heroine has little culpability for acting outside of its legal confines. The Linen-Draper’s necessary and prolonged absence, as well as his permissive attitude toward her remarriage, “freed” Moll from “all of the Obligations . . . of Wedlock”—“no Body could blame me,” she implicitly reasons, for “thinking my self” at liberty to “marry again” (126). Moll’s rationale, which substitutes contract logic for criminal and moral liability, purports to rewrite marriage as a negotiable compact, one contingent upon material and temporal circumstance.
This liberal perspective recurs throughout the novel, further authorizing informal
dissolution procedures and authenticating the idea of autonomous private exchange. Thus, Moll’s third marriage, an incestuous union entered into through “no Fault of [hers] nor of his” (342), is dissolved, not by ecclesiastical decree as required, but by informal spousal consent (104). This private democratic action preserves the parties’ reputations, protects their children’s legal legitimacy, and obviates the expense of judicial intervention (96). Moreover, Moll’s fourth marriage, a financial disaster, is terminated by the husband’s written notice: “Our Marriage is
nothing,” he writes to Moll; “I here discharge you from it; if you can Marry to your Advantage, do not decline it on my Account” (153). Initially skeptical of the dissolution’s validity, Moll is quickly persuaded by the rhetoric of liberal contract (voiced by Moll’s “Governess,” Mother Midnight)—“as we were parted by mutual consent, the nature of the contract was destroyed, and the obligation mutually discharged”—of her right to marry again (172-73). This contractual perspective then paves the way for a fifth marriage of economic security and moral stability, a union memorialized by Moll in the sentimental terms of “Virtue and Sobriety,” “safe Harbour” and “Deliverance,” and “Ease and Content” (188-89). The progressive attitude also secures Moll’s final reward: a legally bigamous, but morally irreproachable, re-union with her beloved fourth husband, Jemy.
Defoe’s failure to indict or punish Moll’s illicit conduct, and his proleptic references to marriage as a secular and severable contract suggest, not a radical or corrupted view of the nuptial bond, but rather a realistic and pragmatic understanding of its vicissitudes. Indeed, the author represents marriage as a primarily economic union and uses contemporary market conditions (immanently favorable to men and attuned to each party’s fortune) and the truth of female dependence to establish its necessity and to justify its fluidity (see 20-21 and 67-68). Moll’s very survival depends on her sexual autonomy and, in particular, her ability to make or break marriage contracts at will: the life “Circumstances” that “ma[ke] the offer of a good Husband . . . the most necessary Thing in the World to [Moll]” (76), also require the right of withdrawal when the economic or social expectations of the union are breached. It is, after all, the case that poverty and vice are constant threats in Moll’s commonplace world—perpetual hazards to which marriage often provides only a temporary defense. As critics have noted, Defoe’s approach to domesticity in his fiction complicates his traditionalist non-fiction writing
on marriage and the family.162 In Conjugal Lewdness: A Treatise Concerning the Use and Abuse of the Marriage Bed (1727), for example, Defoe promotes the ideal marriage as an affective institution, and he employs the public welfare doctrine and religious ideology to argue against Milton’s idea of marriage as “a stated Contract” dissoluble by “mutual Agreement” (118). Nonetheless, in this novel, Defoe subordinates moral and legal questions of marital permanence to the systemic realities of economic disadvantage and social marginalization.163
Defoe (as novelist) is not, however, indifferent to the period’s patriarchally-inscribed marital ethics nor is he entirely dismissive of the law that seeks to remedy their violation. Moll’s history is replete with narratives of and critical reflections on “the Wickedness of the times” (22), as it is expressed in extra-marital sexual activity. Indeed, adulterous behavior infects every regional corner and social class of Defoe’s fictional world; its victims both the virtuous wife and the honest husband (see, e.g., 64-67; 108-09; and 134-38). The novel attends to the problem of adultery and the solution of divorce most notably in the subplot involving Moll’s fifth husband, the bank trustee, and his first wife, a serial adulteress. The short narrative begins with the
162 Some scholarly investigations into the apparent disconnect between Defoe’s fiction and his domestic treatise-
writing have produced arguments of inter-textual reconciliation. David Blewett, for example, works to unite Moll
Flanders with Defoe’s Religious Courtship (1722) and Conjugal Lewdness, or Matrimonial Whoredom (1727):
“Moll Flanders . . . in no way contradicts the principles that we find in Defoe’s moral treatises,” he argues. “Rather it illustrates one of his central moral doctrines, the utter wrongfulness of marriages of expedience” (87).
Additionally, Melissa Ganz reads the novel as an extension of Defoe’s argument against Milton’s liberal construction of marriage in Conjugal Lewdness, a perspective that contributes to her conclusion that Defoe’s position on divorce law reform was limited to prolonged instances of spousal desertion (“Moll Flanders and English Marriage Law,” 167-73). In contrast, scholars such as Watt and Richetti treat the two categories of Defoe’s writing as distinct in purpose and premise: Watt argues that, in comparison to his “didactic works,” Defoe’s “novels reflect not theory but practice” (66) and Richetti contends that Defoe’s fiction “generates an institutional force of its own,” one that can be distinguished from that of his instructive material (“Family, Sex, and Marriage,” 23). For a
description of additional scholarship in this vein, see Campbell, “Strictly Business,” 66n.9.
163 Maximillian Novak offers another possible explanation for Defoe’s non-traditionalist approach to marriage and
divorce in his fiction. Novak argues that Defoe applied to natural law, which took a more liberal perspective on the notion of marital permanence (Defoe and the Nature of Man 88-112). In the novel’s representation of adultery, divorce, and bigamy, Novak writes, “Defoe was treating a situation in which the positive laws failed to satisfy the demands of nature and reason” (106).
“Circumstances of his [the trustee’s] Case,” which include multiple affairs, two bastard children, and an unrepentant spouse (135), and it concludes with a final judgment, which appears as dissolution and decease, the (now) remorseful wife committing suicide upon notice of the husband’s divorce decree (171). What is significant about this vignette is the way in which it reflects the partisan treatment and punitive rhetoric of parliamentary divorce. The cuckolded husband is given a narrative voice and a legal platform upon which to air and vindicate his grievances, while the adulterous wife is denied any such voice or agency. She is forcibly
consigned to the position of “dishonest” “Whore,” condemned by a “final Sentence of Divorce,” while he enjoys the status of “Injur’d and Abus’d” husband, liberated by the wheels of “Justice” (135-38, 171). Even the wife’s death is drawn less as a tragedy than as an unfortunate
consequence of the husband’s legitimate legal claim (171). Compare this fate to that of Moll’s married lover, the Gentleman from Bath, who, after recovering from a life threatening illness, simply releases Moll from their arrangement and returns to his marriage with the purpose of “Repentance” and “Reformation” (125, 120-26). Neither divorce nor death is even a remote possibility for this adulterer.With the differential treatment of wifely and husbandly adultery, then, Defoe reflects the contemporary code of marital conduct and its gendered fictions—the code that demanded women’s chastity but excused male vice; the code that presumptively treated wifely adultery as a pernicious moral disease; and the code that that prohibited women’s freedom from marriage but acknowledged men’s right of release.
Yet, as he does with bigamy, Defoe exhibits through his heroinea willingness to concede women’s sexual integrity and the law’s patriarchal and punitive force to the paradigm of
necessity. Moll herself participates in the nation’s pervasive sexual corruption, acting the role of mistress and the bearer of bastards multiple times in the novel. These intimate relationships,
forged with the knowledge of their immorality, do arouse the heroine’s self-censure and motivate her contrition: the autobiographer recalls, “the Reproaches of my own Conscience were such as I could not express, for I was not blind to my own Crime” (124), which promised “more Work for Repentance” (238). Nonetheless, Moll is neither punished at law nor publicly chastised for her conduct—her personal narrative is devoid of lawsuits for criminal conversation and free from threats of divorce, separation, or conjugal restitution. In fact, Moll’s affairs, which are
accompanied with financial benefits, allow her to avoid the grievous clutches of property crime and to attain the religious maxim “Give me not Poverty lest I Steal” (191). Moll is, therefore, representative of those women for whom sexual immorality occurs “by Necessity,” women whose culpability is distinguished from that of the adulterous wife who acted “a Whore . . . by Inclination, and for the sake of Vice” (135). It is this latter embodiment of female moral corruption, Defoe seems to suggest, that poses the most powerful threat to public and private well-being and that accordingly warrants legal and literary discipline; in contrast, Moll and her disadvantaged sort deserve sympathetic treatment and an exculpatory hearing.164 Thus, in this world, the social and legal presumptions limiting women’s sexual agency are reserved for a certain class—for all others, those presumptions are unjust and counterproductive fictions.
Defoe extends the novel’s critical investigation of domestic vice and its juridical outcomes to the issues of parental duty and child welfare. Moll’s history encompasses six distinct family systems, each of which collapses at the moment of marital, or in one case, extra- marital, disunion. Indeed, once the family unit is disrupted by spousal death, desertion, or mutual detachment, its constituent parts are, with one exception, permanently separated. Four of Moll’s
164 See Novak for a useful discussion of the way in which Defoe implicates natural law and, in particular, the
eight surviving children remain in the custody of paternal caretakers, while the other four are given over, at Moll’s election, to third party custodians, whose role is principally justified by the heroine’s economic distress and social displacement (see, e.g., 123-25). Only one child,
Humphrey, is provided a name and a voice—the others are erased from the narrative design and the heroine’s criminal history almost as quickly as they were introduced. These unidentified, unclaimed, and generally illegitimate progeny thus move silently through the memoir as
incorporeal symbols of the legal fiction of filius nullius, their very selfhood appropriated by the failure of marital unity and parental obligation. Through their silencing, these characters testify to the deep existential pain of familial estrangement, and they challenge the propriety of a legal construct that promotes filial erasure. Their testimony is only strengthened by the named child’s highly-sentimentalized reunion with his mother—the kiss, the embrace, and the “heave and throb” of unremitting “Sobs” (333) giving clear expression to the suffering and injustice born by all.
Notwithstanding the novel’s preoccupation with familial strife, the theme of child abandonment and neglect, like that of marital indiscretion, remains outside of the protagonist’s repentance narrative. Once again, misfortune and hardship rationale negate the autobiographer’s penitential compulsion. Moll’s own experience of abandonment at just six months old is
presented early on as justification for her unlawful and immoral behaviors: born in Newgate prison, deserted by her criminal mother upon a sentence of transportation, and left unprotected by the state, she was “brought into a Course of Life . . . which . . . tended to the swift Destruction both of Soul and Body” (8). The memoirist’s astute (and tendentious) observation signals a transfer of responsibility that permeates every aspect of the protagonist’s “criminal” career. As Hal Gladfelder argues,
Moll carries Newgate with her as an inheritance and a contagion. . . . Like her mother, . . . [she] is led along her own moral itinerary by social and material pressures: above all by poverty and the absence of institutional supports. Her mother’s crime, itself the effect of material desperation and a corrupting environment, is passed onto Moll in the form of social dislocation and dependency. . . (115-16)
This dislocation and dependency manifests itself not only in criminal behavior, but also in maternal incapacity, or, in Toni Bowers’s terms, “maternal monstrosity” (98).
We see this “monstrosity” unfold most profoundly in a transitional anecdote where Moll,